Serna v. Banks
| Decision Date | 30 August 2022 |
| Docket Number | 13-20-00505-CV |
| Parties | JOSE F. SERNA AND AS BENEFICIARY OF THE ESTATES OF OLIVIA ACOSTA AND FRANCISCO R. SERNA, Appellant, v. JOE F. BANKS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 94th District Court of Nueces County, Texas.
Before Justices Benavides, Hinojosa, and Silva
By three issues, appellant Jose F. Serna contends the trial court erred when it dismissed his suit against appellee Joe F. Banks pursuant to Rule 91a of the Texas Rules of Civil Procedure because the Rule 91a motion to dismiss: (1) was untimely filed (2) failed to identify each cause of action; and (3) some dismissed claims related back to the original pleadings. See Tex. R. Civ. P. 91a. We reverse and remand.
On April 9, 2017, Serna filed a lawsuit alleging that his half-brother Banks defrauded Olivia Acosta, their mother, and Francisco Serna, Serna's father and Banks's stepfather, of their personal assets. Serna filed the lawsuit along with Mac Acosta, Olivia's husband at the time of her death, and Mechelle Fowler.
The lawsuit alleged that Olivia signed a general power of attorney in 2000 authorizing her oldest son Banks to act on her behalf to manage her financial affairs.[1]Olivia also signed a medical power of attorney in 2008 authorizing Banks to make medical decisions for her in the event she no longer could. The lawsuit alleged that Banks unlawfully withdrew at least $230,000 from two of Olivia's personal banking funds for his personal use. Plaintiffs further complained that Banks fraudulently made himself the beneficiary of one of Olivia's annuities and misappropriated jewelry. Olivia revoked her power of attorney in 2016, one year before she died in 2017.
Regarding Francisco, the lawsuit alleged that Banks filed an application to be appointed guardian of the person and estate of Francisco, which was granted on March 29, 2011. Francisco, during the time the application for guardianship was pending, made Banks the sole beneficiary of his estate in his will. Francisco died on September 27, 2017, at the age of ninety-nine.
The lawsuit set forth the following causes of action: (1) breach of fiduciary duty; (2) conversion; (3) fraud; (4) breach of fiduciary of an elderly person; (5) negligence; and (6) constructive trust regarding both the estates of Olivia and Francisco.
On May 12, 2017, Banks filed his original answer and verified denial, generally denying all claims. The plaintiffs later filed a First Amended Petition and Second Amended Petition, largely alleging the same claims. On February 24, 2020, however, plaintiffs filed their Third Amended Original Petition where they added theft and conspiracy causes of action. Banks filed his first amended answer, verified denial, and motion to show authority on February 28, 2020.
On April 20, 2020, Banks filed his first motion to dismiss under Texas Rule of Civil Procedure 91a. The trial court held a hearing on Banks's motion to show authority and motion to dismiss on June 17, 2020. Regarding Olivia's estate, Banks noted that Olivia died with a will that was admitted to probate as a muniment of title in April of 2017, and her estate had already been distributed according to her wishes. Banks pointed out that none of the plaintiffs timely contested the will nor attempted an independent administration of the estate at that time. Regarding Francisco, Francisco died with a will on September 27, 2017. Banks asserted that the will had been admitted to probate in Nueces County and that it was still pending. In sum, Banks argued that the claims plaintiffs asserted in their multiple petitions were "derivative claims" of the estates of Olivia and Francisco, and neither Serna, Mac, nor Fowler had authority or standing to file these claims.
On July 6, 2020, the trial court issued two orders. First, it granted Banks's motion to show authority in part, dismissing Mac and Fowler from the suit.[2] The order further dismissed Serna "as next friend of Francisco Serna, [d]eceased," as Serna failed to show the court sufficient authority that he could prosecute such claims. The trial court also granted the motion to dismiss in part, dismissing the theft and conspiracy causes of action and permitting Serna to pursue claims for his parents' non-probate assets only.[3]
On July 16, 2020, Serna filed a Fourth Amended Original Petition. The Fourth Amended Original Petition identified for the first time, "Jose F. Serna, Individually [and] as Beneficiary of the Estates of Olivi[a] Acosta and Francisco R. Serna." Mac and Fowler were no longer plaintiffs. The lawsuit reasserted the following causes of action: (1) breach of fiduciary duty; (2) conversion; (3) fraud; (4) breach of fiduciary of an elderly person; (5) negligence; and (6) constructive trust. In the lawsuit, Serna "demanded his respective portion of the estates of Olivia Acosta and Francisco R. Serna."
On July 27, 2020, Banks filed his second motion to dismiss pursuant to Rule 91a. This motion again attacked Serna's lack of standing "as beneficiary of the estates" of Olivia and Francisco. Banks re-asserted that Olivia's estate had already been probated without objection in 2017. He further noted that Francisco's estate was still pending in the Nueces County probate court and that no executor had been appointed yet. Banks thus argued that Serna "lack[ed] authority and standing to represent these estates individually, as a beneficiary, or as a representative," and therefore, Serna's claims should be dismissed.
Banks further argued that Serna was Citing the recent Texas Supreme Court case Archer v. Anderson, Banks contended that "[t]he tort of intentional interference with inheritance is not recognized in Texas." 556 S.W.3d 228, 239 (Tex. 2018). This, Banks claimed, was another reason Serna's claims should fail.
Serna filed his reply on August 12, 2020. The trial court held a hearing on the motion on August 21, 2020. On October 7, 2020, the Court granted Banks's motion to dismiss. Serna appeals from this order.
In reviewing the trial court's ruling on a Rule 91a motion to dismiss, we perform a de novo review. See Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020); In re Odebrecht Const., Inc., 548 S.W.3d 739, 745 (Tex. App.-Corpus Christi-Edinburg 2018, orig. proceeding). "Texas is a fair notice pleading jurisdiction," and therefore the standard of fair notice is applied to Rule 91a motions to dismiss. In re Odebrecht Const., 548 S.W.3d at 746. The fair notice standard is a "relatively liberal standard." Id. (quoting Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007)). "In our review, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact." Stedman v. Paz, 511 S.W.3d 635, 637 (Tex. App.-Corpus Christi-Edinburg 2015, no pet.). Under the fair notice standard, a pleading is sufficient if it provides the opposing party with fair and adequate notice of the facts upon which the pleader bases their claims to enable the opposing party to prepare a defense or response. In re Odebrecht Const., 548 S.W.3d at 746; see First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224-25 (Tex. 2017).
Tex. R. Civ. P. 91a.1. "A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Id. R. 91a.2. In ruling on a 91a motion, the court "must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by the rules of civil procedure." Reaves v. City of Corpus Christi, 518 S.W.3d 594, 599 (Tex. App.-Corpus Christi-Edinburg 2017, no pet.); see In re Butt, 495 S.W.3d 455, 461 (Tex. App.-Corpus Christi-Edinburg 2016, orig. proceeding). A Rule 91a motion must be "filed within 60 days after the first pleading containing the challenged cause of action is served on the movant." Tex.R.Civ.P. 91a.3(a).
A. The Timeliness of the Second Motion to Dismiss
By his first issue, Serna argues that the trial court erred in granting Banks's second motion to dismiss because it was filed more than sixty days after Serna filed his original petition. Se...
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